This matter
having come before the Court on the Indiana Department of Environmental
Management’s Motion to Dismiss, which pleadings are a part of the Court’s
record; and the Environmental Law Judge (“ELJ”), being duly advised and having
read and considered the petitions, motions, evidence, and the briefs, responses
and replies of the parties, finds that judgment may be made upon the record and
makes the following findings of fact and conclusions of law and enters thefollowing
Order:

Statement of
Case

1.On May 23, 2005, the IDEM issued Final NPDES Permit No. IN0025607 to the
City of Terre Haute. This permit contained paragraph I(H) which states:

In the event that
the permittee decides to accept any process wastewater from the Marathon Oil
Refinery into the Terre Haute Publicly Owned Treatment Works, the permittee is
required to submit a request to IDEM to modify its NPDES permit at least 180
days prior to the proposed commencement of such discharge into the Terre Haute
POTW. The permittee cannot accept the proposed discharge until the requested
NPDES permit modification has been issued by IDEM. This provision is
applicable to either a direct discharge of the wastewater into the wastewater
treatment plant or an indirect discharge of the wastewater through an
industrial contributor to the collection system.

3.On November 17, 2005, the IDEM and the Petitioner both filed Motions for
Summary Judgment.

4.On November 18, 2005, the Petitioner filed a Motion to Supplement
Petitioner’s Brief in Support of its Motion for Summary Judgment.

[2007 OEA 1, page 3 begins]

5.On December 16, 2005, the Petitioner filed Petitioner’s Opposition to
IDEM’s Motion for Summary Judgment and a Motion to Strike.

6.On December 19, 2005, the IDEM filed IDEM’s Response to Petitioner’s
Brief in Support of its Motion for Summary Judgment. As part of its Response
to Petitioner’s Brief in Support of its Motion for Summary Judgment, the IDEM
moved to strike certain portions of Petitioner’s evidence in support of the
Motion for Summary Judgment.

7.On January 20, 2006, both parties filed their reply briefs regarding the
motions for summary judgment. As part of Terre Tech’s Reply in Support of its
Motion for Summary Judgment, the Petitioner filed the Second Motion to Strike
and Opposition to IDEM’s Motion to Strike. On this same day, the IDEM filed
the Indiana Department of Environmental Management’s Response to Motion to
Strike.

9.On March 9, 2006, the IDEM filed its Reply to Petitioner’s Second Motion
to Strike and Motion to Strike Designated Evidence.

10.This matter
was set for oral argument on May 16, 2006

11.On April
25, 2006, the ELJ issued an Order on the Motion to Supplement and to Strike.
Exhibit 2 of IDEM’s Motion for Summary Judgment was struck. The remaining
objections to the evidence designated in support of the motions for summary
judgment were overruled.

12.On April
28, 2006, the IDEM filed a Motion to Continue the oral argument. This motion
was granted and the oral argument was reset for June 13, 2006.

14.The IDEM
filed a Notice to Office of Environmental Adjudication Regarding Motion for
Summary Judgment and Underlying Cause on June 13, 2006.

15.The ELJ
issued an Order Continuing Hearing and Order for Status Report on June 14,
2006.

16.The IDEM
filed status reports on July 3, 2006 and September 25, 2006. The Petitioner
filed a status report on September 20, 2006.

17.The ELJ
issued a case management order on October 10, 2006 ordering the parties to file
any supplemental materials on or before November 10, 2006 and responses to the
supplemental materials within fifteen (15) days of service. On the
Petitioner’s motion, the deadline for supplemental materials was extended to
December 9, 2006.

[2007 OEA 1, page 4 begins]

18.On December
11, 2006, the Petitioner filed Terre Tech’s Submission of Supplemental
Materials. On December 21, 2006, the IDEM filed a Motion to Dismiss.

Findings of
Fact

1.The City of Terre Haute (the “City”) operates a Class IV, 24 MGD[1]
activated sludge wastewater treatment plant. On December 10, 2003, the City
submitted an application for renewal of its NPDES[2]
permit for the plant.

2.On May 23, 2005, the IDEM issued Final NPDES Permit No. IN0025607 (the
“Permit”) to the City of Terre Haute. This Permit contained paragraph I(H)
which states:

In the event that
the permittee decides to accept any process wastewater from the Marathon Oil
Refinery into the Terre Haute Publicly Owned Treatment Works, the permittee is
required to submit a request to IDEM to modify its NPDES permit at least 180
days prior to the proposed commencement of such discharge into the Terre Haute
POTW. The permittee cannot accept the proposed discharge until the requested
NPDES permit modification has been issued by IDEM. This provision is
applicable to either a direct discharge of the wastewater into the wastewater
treatment plant or an indirect discharge of the wastewater through an
industrial contributor to the collection system.

3.Terre Tech, Inc. (the “Petitioner”) filed a Petition for Review
objecting to the inclusion of this paragraph in the Permit. The Petitioner did
not object to any other provisions of the Permit.

4.The Petitioner had planned to operate a facility which would accept and
treat the process wastewater from the Marathon Oil Refinery in Robinson, Illinois. The wastewater from the Terre Tech facility would be discharged to the
Terre Haute POTW.

5.On or about August 25, 2006, the IDEM issued a Final Modification NPDES
Permit No. IN0025607 to the City of Terre Haute for its wastewater treatment
plant. The IDEM deleted paragraph I(H) from the final modification to the
Permit.

6.No person filed a petition for review objecting to the modification of
the Permit. Therefore, the final modification was effective on October 1,
2006.

[2007 OEA 1, page 5 begins]

Conclusions
of Law

1.The Office of Environmental Adjudication (“OEA”) has jurisdiction over
the decisions of the Commissioner of the IDEM and the parties to the
controversy pursuant to IC 4-21.5-7-3.

2.Findings of fact that may be construed as conclusions of law and
conclusions of law that may be construed as findings of fact are so deemed.

3.This Court must apply a de novo standard of review to this
proceeding when determining the facts at issue. Indiana Dept. of
Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993). Findings of fact must be based exclusively on the evidence presented to the
ELJ, and deference to the agency’s initial factual determination is not
allowed. Id.; I.C. 4-21.5-3-27(d). “De novo review”
means that:

all are to
be determined anew, based solely upon the evidence adduced at that hearing and
independent of any previous findings.

4.The
IDEM argues that the Permit modification, in which the offending paragraph was
deleted, renders this case moot and, therefore, it should be dismissed.[3]
“When a dispositive issue in a case has been resolved in such as way as to
render it unnecessary to decide the question involved, the case will be
dismissed.” Travelers Indem. Co. v. P.R. Mallory & Co., 772
NE.2d 479, 484 (Ind. App. 2002). A case is deemed moot when there is no
effective relief that can be rendered to the parties by the Court. A.D. v.
State, 736 N.E.2d 1274, 1276 (Ind. App. 2000).

5.Because
the offending paragraph was deleted, the Petitioner’s technical arguments
regarding whether the IDEM was correct in deciding the wastewater from the
Marathon Oil Refinery required a modification of the City’s NPDES Permit are
moot. However, the Petitioner also asserts that the requirements of Paragraph
I(H) amount to an unconstitutional restriction on interstate commerce and to an
unconstitutional taking of property. The Petitioner argues that this matter is
not moot and should not be dismissed[4]
because (1) this case raises issues of great public interest and (2) the Office
of Environmental Adjudication has the authority to address constitutional
issues.

6.This
Court “may decide an arguably moot case on its merits if it involves questions
of great public interest.” Id. “Cases that fit within this exception
typically are those containing issues that are likely to recur.” Id. Indiana’s courts have determined that the likelihood of recurrence was sufficient to
overcome a challenge for mootness in the review of a three-

7.After
examining the facts of this case and based on the ELJ’s experience in the
environmental field and, in particular, her knowledge of issues previously
raised before the OEA, the ELJ concludes that this factual situation and issue
is not likely to recur and therefore, is not a matter of “great public
interest”.

8.The
Petitioner argues that that this case is not moot because there are
constitutional issues that have been raised and should be decided by the ELJ.
The United States Supreme Court in Califano v. Sanders (1977) 430 U.S. 99, 109, 97 S. Ct. 980, 986, 51 L.
Ed. 2d 192, 201-2stated, “Constitutional questions obviously are unsuited to resolution
in administrative hearing procedures and, therefore, access to the courts is
essential to the decision of such questions.” The Indiana Supreme Court in Wilson v. Review
Board of Ind. Emp. Sec. Div., 270 Ind. 302, 385 N.E. 2d 438 (Ind. 1979),says “In the present case,
the question presented is of constitutional character. With all due respect, we
think that the resolution of such a purely legal issue is beyond the expertise
of the Division's administrative channels and is thus a subject more
appropriate for judicial consideration.”

9.Even
if the ELJ determined that there had been an unconstitutional taking of
property in this case, the ELJ does not have the authority to award damages to
the Petitioner. In Re Objections to the Denial of Extension of Reply Period
and Denial of Operating Permit Renewal for the Mallard Lake Landfill, Madison
County, Indiana 2004 OEA 82 (03-S-J-3185).

10.This matter is moot and
should be dismissed.

[2007 OEA 1, page 7 begins]

ORDER

AND THE COURT, being duly advised, GRANTS the IDEM’s Motion
to Dismiss and ORDERS, ADJUDGES AND DECREES that this matter is DISMISSED.

You are hereby
further notified that pursuant to provisions of Ind. Code §
4-21.5-7.5, the Office of Environmental Adjudication serves as the Ultimate
Authority in the administrative review of decisions of the Commissioner of the
Indiana Department of Environmental Management. This is a Final Order subject
to Judicial Review consistent with applicable provisions of IC 4-21.5.
Pursuant to IC 4-21.5-5-5, a Petition for Judicial Review of this Final Order is
timely only if it is filed with a civil court of competent jurisdiction within
thirty (30) days after the date this notice is served.

[3]
IDEM has raised the argument that this matter is moot in its June 13, 2006
Notice to Office of Environmental Adjudication Regarding Motion for Summary
Judgment and Underlying Cause, the July 3, 2006 and September 25, 2006 status
reports and the December 21, 2006 Motion to Dismiss.